No. 00-1595 

In the Supreme Court of the United States 

HOFFMAN PLASTIC COMPOUNDS, INC., PETITIONER 

v. 

NATIONAL LABOR RELATIONS BOARD 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

ARTHUR F. ROSENFELD 

General Counsel 
JOHN E. HIGGINS, JR. 

Deputy General Counsel 
JOHN H. FERGUSON 

Associate General Counsel 
NORTON J. COME 

Deputy Associate General 

Counsel 
JOHN EMAD ARBAB 

Attorney 
National Labor Relations 

Board 
Washington, D.C. 20570 
THEODORE B. OLSON 

Solicitor General 

Counsel of Record 
LAWRENCE G. WALLACE 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether an order of the National Labor Relations Board 
directing petitioner to pay back pay to an employee who was 
discriminatorily laid off for union-organizing activity in 
violation of Section 8(a)(3) of the National Labor Relations 
Act (Act), 29 U.S.C. 158(a)(3), but only up to the date on 
which petitioner discovered that the employee was an 
undocumented alien not authorized to be employed in the 
United States, is a proper exercise of the Board’s authority 
to remedy petitioner’s violation of Section 8(a)(3) of the Act. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
12 

Argument: 

The Board’s limited award of back pay in this case 
is a proper exercise of its authority to remedy 
petitioner’s violation of Section 8(a)(3) of the National 

Labor Relations Act .............................................................. 

16 

A. This Court’s decision in Sure-Tan does not 

preclude appropriately limited back pay for un- 
documented alien employees discharged in violation 
of Section 8(a)(3) who are physically present in the 

United States during the back pay period ................. 

17 

B. The Board’s limited back pay award in this case 

reasonably accommodates the policies of the 
NLRA and IRCA ........................................................... 

29 

Conclusion ....................................................................................... 43 

TABLE OF AUTHORITIES 

Cases: 

ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 
(1994) ........................................................................................ 38 

A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 
408 (1995), enf ’d, 134 F.3d 50 (2d Cir. 1997) .... 

6-7, 8, 34, 35, 36 

Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975) ........................................................................................ 42 

Alvarez v. Sanchez, 482 N.Y.S.2d 184 (App. Div. 
1984) ......................................................................................... 26 

(III) 

IV 

Cases—Continued: Page 

Bevles Co. v. Teamsters Local 986, 791 F.2d 1391 
(9th Cir. 1986), cert. denied, 484 U.S. 985 (1987) ............. 
26 

Brown Truck & Trailer Mfg. Co., 106 N.L.R.B. 
999 (1953) ................................................................................. 
21 

Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 
25 F. Supp. 2d 1053 (N.D. Cal. 1998) .................................. 
26 

Del Rey Tortilleria, Inc., 302 N.L.R.B. 216 (1991), 
enf. denied, 976 F.2d 1115 (7th Cir. 1992) ................... 
6, 25, 27 

Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 
(7th Cir. 1992) ................................................................... 
6, 25, 27 

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th 

Cir. 1989) ................................................................................. 

26 

EEOC v. Tortilleria “La Mejor,” 758 F. Supp. 
595 (E.D. Cal. 1991) ............................................................... 
26 

Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 
(4th Cir. 1998), cert. denied, 525 U.S. 1142 (1999) ..... 
26, 28-29 

F.W. Woolworth Co., 90 N.L.R.B. 286 (1950) ..................... 
10 

Felbro, Inc., 274 N.L.R.B. 1268 (1985), enf. denied, 
795 F.2d 705 (9th Cir. 1986) ...................................... 
6, 21, 27, 28 

Gifford-Hill & Co., Inc., 188 N.L.R.B. 337 (1971) .............. 
21 

Golden State Bottling Co. v. NLRB, 414 U.S. 168 
(1973) ........................................................................................ 30 

Hoffman Plastic Compounds, Inc., 306 N.L.R.B. 
100 (1992) ................................................................................. 

8, 9 

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ................... 
24, 25 

John Cuneo, Inc., 298 N.L.R.B. 856 (1990) ................. 
31, 32, 33 

John David Brock, 42 N.L.R.B. 457 (1942) ......................... 
21 

Justrite Mfg. Co., 238 N.L.R.B. 57 (1978) ........................... 
21 

Local 512, Warehouse & Office Workers’ Union v. 

NLRB (Felbro, Inc.), 795 F.2d 705 (9th Cir. 
1986) ......................................................................................... 

6, 25 
Lundy Packing Co., 286 N.L.R.B. 141 (1987), enf ’d, 
856 F.2d 627 (4th Cir. 1988) ................................................. 
21 

MSW Constr., Inc., 219 N.L.R.B. 1073 
(1975) ........................................................................................ 21 

V 

Cases—Continued: Page 

Marshall Durbin Poultry Co., 310 N.L.R.B. 68 
(1993), enf ’d in relevant part, 39 F.3d 1312 (5th 
Cir. 1994) ................................................................................. 
31 

McKennon v. Nashville Banner Publ’g Co., 
513 U.S. 352 (1995) ................................................... 
14, 30-31, 32 

Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985) ................ 
21-22 

Mitchell v. Robert De Mario Jewelry, Inc., 
361 U.S. 288 (1980) ................................................................. 
37 

NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 
134 F.3d 50 (2d Cir. 1997) ..................................................... 
25 

NLRB v. Apollo Tire Co., 604 F.2d 1180 (9th 

Cir. 1979) ................................................................................. 

28 

NLRB v. Browne, 890 F.2d 605 (2d Cir. 1989) ................. 
21 

NLRB v. Future Ambulette, Inc., 903 F.2d 140 
(2d Cir. 1990) ........................................................................... 
21 

NLRB v. IBEW, Local Union 112, 992 F.2d 990 
(9th Cir. 1993) ......................................................................... 
21 

NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 
(1969) ........................................................................................ 
2, 32 

NLRB v. Seven-Up Bottling Co., 344 U.S. 344 
(1953) ........................................................................................ 
2, 10 

NLRB v. Sure-Tan, Inc., 672 F.2d 592 (7th Cir. 
1982), rev’d in part, 467 U.S. 883 (1984) .................. 
3, 4, 18, 19 

NLRB v. Transportation Mgmt. Corp., 462 U.S. 
393 (1983) ................................................................................. 
2 

Nathanson v. NLRB, 344 U.S. 25 (1952) ........................... 
29, 41 

Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 
1988), cert. denied, 489 U.S. 1011 (1989) ........................... 
26, 40 

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 
(1941) ............................................................................. 
2, 29, 30, 41 

Republic Steel Corp. v. NLRB, 311 U.S. 7 (1940) ............ 
30 

Reyes, In re, 814 F.2d 168 (5th Cir. 1987) ............................ 
26 

Rios v. Enterprise Assoc. Steamfitters Local 

Union 638, 860 F.2d 1168 (2d Cir. 1988) ........................... 

26 

Robinson Freight Lines, 129 N.L.R.B. 1040 (1960) ........... 21 

VI 

Cases—Continued: Page 

Southern S.S. Co. v. NLRB, 316 U.S. 31 (1942) ............... 
32 

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 
(1993) ........................................................................................ 39 

Sure-Tan, Inc., 234 N.L.R.B. 1187 (1978) ................... 

18, 21, 22 

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .............. 
passim 

United States v. Duquesne Light Co., 423 F. Supp. 
507 (W.D. Pa. 1976) ............................................................... 
6-37 

United States v. Travers, 514 F.2d 1171 (2d Cir. 
1974) ......................................................................................... 23 

United States v. Whitney Nat’l Bank, 671 F. Supp. 
441 (E.D. La. 1987) ................................................................ 

36 

Virginia Elec. & Power Corp. v. NLRB, 319 U.S. 
533 (1943) ................................................................................. 
30 

Statutes and regulations: 

Age Discrimination in Employment Act of 1967, 
29 U.S.C. 621 et seq. ............................................................... 

31 
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e 
et seq. ........................................................................................ 
26 

Equal Pay Act, 29 U.S.C. 206(d) ............................................ 
27 

Fair Labor Standards Act of 1938, 29 U.S.C. 201 
et seq. ........................................................................................ 
26 

29 U.S.C. 206(a) ................................................................. 
27 

29 U.S.C. 207(a) ................................................................. 
27 

29 U.S.C. 215(a)(3) ............................................................ 
36 

29 U.S.C. 216(c) ................................................................. 
36 

Fair Labor Standards Amendments of 1989, 

Pub. L. No. 101-157, § 9, 103 Stat. 945 ............................... 

37 

Immigration Act of 1990, Pub. L. No. 101-649, § 544, 
104 Stat. 5059-5061 ................................................................ 
38 

Immigration and Nationality Act, 8 U.S.C. 1101 
et seq. ........................................................................................ 
4 

8 U.S.C. 1227(a)(3)(C)(i) .................................................. 
39 

8 U.S.C. 1324a(1)(B) ........................................................ 
6 

8 U.S.C. 1324a(a)(1) ......................................................... 
5, 37 

8 U.S.C. 1324a(a)(1)(B) .................................................... 5, 6 

VII 

Statutes and regulations—Continued: 
Page 

8 U.S.C. 1324a(a)(2) .............................................. 
5, 24, 34, 37 

8 U.S.C. 1324a(a)(3) ......................................................... 
34 

8 U.S.C. 1324a(b) .......................................................... 
5, 6, 33 

8 U.S.C. 1324a(e)(4) ......................................................... 
5 

8 U.S.C. 1324a(e)(4)(A) ................................................... 
5-6 

8 U.S.C. 1324a(e)(5) ......................................................... 
5, 6 

8 U.S.C. 1324a(f)(1) .......................................................... 
5, 6 

8 U.S.C. 1324a(h)(3) ......................................................... 
5 

8 U.S.C. 1324c(a) .............................................................. 
38 

8 U.S.C. 1324c(a)(4) .......................................................... 
39 

8 U.S.C. 1324c(d)(3) ......................................................... 
38, 39 

Immigration Reform and Control Act of 1986, 

Pub. L. No. 99-603, 100 Stat. 3359 ...................................... 

4, 16 

§ 111(a)(1), 100 Stat. 3381 ................................................ 
36 

§ 111(d), 100 Stat. 3381 ..................................................... 
36 

National Labor Relations Act, 29 U.S.C. 151 et seq. .......... 
26 

§ 2(3), 29 U.S.C. 152(3) ..................................................... 
2 

§ 8(a)(3), 29 U.S.C. 158(a)(3) .................. 
2, 7, 8, 12, 13, 16, 17 

§ 10(c), 29 U.S.C. 160(c) .................................................... 
2 

18 U.S.C. 1546(a) (1994 & Supp. V 1999) .............................. 
38 

18 U.S.C. 1546(b) ................................................................. 
6, 38, 39 

18 U.S.C. 1546(b)(1) .................................................................. 
6, 38 

18 U.S.C. 1546(b)(2) .................................................................. 
6, 38 

8 C.F.R.: 

Section 274a.1(h) ............................................................... 

41 

Section 274a.2(b)(1)(i) ....................................................... 
41 

Section 274a.2(b)(1)(viii)(A)(5) ........................................ 
34 

Section 274a.10(b)(1) ......................................................... 
6 

Section 274a.10(b)(2) ......................................................... 
6 

41 C.F.R. 60-1.26(a)(2) .............................................................. 37 

VIII 

Miscellaneous: Page 

Equal Employment Opportunity Commission, 

Enforcement Guidance on Remedies Available to 
Undocumented Workers Under Federal Employment 
Discrimination Laws (Oct. 26, 1999), available at 
<http://www.eeoc.gov/docs/undoc/html> .......................... 26 

H.R. Rep. No. 682, 99th Cong., 2d Sess. Pt. 1 (1986) .......... 

35, 40 

2 B. Lindemann & P. Grossman, Employment Dis- 
crimination Law (3d ed. 1996) ............................................ 
20 

Memorandum of Understanding Between the 

Immigration and Naturalization Service, Depart- 
ment of Justice and the Employment Standards 
Administration, Department of Labor (Nov. 1998), 
available at <http://www.dol.gov/dol/esa/public/ 
whatsnew/whd/mou/nov98mou.html> ............................... 

37 

In the Supreme Court of the United States 

No. 00-1595 

HOFFMAN PLASTIC COMPOUNDS, INC., PETITIONER 

v. 

NATIONAL LABOR RELATIONS BOARD 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 

BRIEF FOR THE 
NATIONAL LABOR RELATIONS BOARD 

OPINIONS BELOW 

The opinion of the en banc court of appeals (Pet. App. 1a- 
36a) is reported at 237 F.3d 639. The prior opinion of the 
court of appeals panel (Pet. App. 37a-77a) is reported at 208 
F.3d 229. The second supplemental decision and order of the 
National Labor Relations Board (Pet. App. 78a-87a) and the 
decision of the administrative law judge (Pet. App. 88a-95a) 
are reported at 326 N.L.R.B. 1060. Prior decisions and or- 
ders of the Board are reported at 314 N.L.R.B. 683 and 306 
N.L.R.B. 100. 

JURISDICTION 

The judgment of the en banc court of appeals was entered 
on January 16, 2001. The petition for a writ of certiorari was 
filed on April 16, 2001, and was granted on September 25, 

(1) 

2 

2001. The jurisdiction of this Court rests on 28 U.S.C. 
1254(1). 

STATEMENT 

1. a. 

Section 8(a)(3) of the National Labor Relations Act 

(NLRA or Act), 29 U.S.C. 158(a)(3), makes it an unfair labor 
practice for an employer “by discrimination in regard to hire 
or tenure of employment or any term or condition of employ- 
ment to encourage or discourage membership in any labor 
organization.” Under Section 8(a)(3), “if the employer fires 
an employee for having engaged in union activities and has 
no other basis for the discharge, or if the reasons that he 
proffers are pretextual, the employer commits an unfair 
labor practice.” NLRB v. Transportation Mgmt. Corp., 462 
U.S. 393, 398 (1983). Section 10(c) of the Act authorizes the 
National Labor Relations Board (Board) to order, as a re- 
medy for a violation of Section 8(a)(3), that the employer 
“cease and desist from such unfair labor practice, and to take 
such affirmative action including reinstatement of employees 
with or without backpay.” 29 U.S.C. 160(c). Awards of back 
pay have historically been a core part of the Board’s re- 
medial authority under the Act. See NLRB v. J.H. Rutter- 
Rex Mfg. Co., 396 U.S. 258, 262-263 (1969) (discussing impor- 
tance of back pay remedy); NLRB v. Seven-Up Bottling Co., 
344 U.S. 344, 347 (1953) (noting that the Board has provided 
for back pay from its “very first published order”); Phelps 
Dodge Corp. v. NLRB, 313 U.S. 177, 197-200 (1941). 

b. In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), this 
Court held, in agreement with the Board, that an alien not 
lawfully present in the United States is entitled to the pro- 
tections of the NLRA as an “employee” within the meaning 
of Section 2(3) of the Act, 29 U.S.C. 152(3). See Sure-Tan, 
467 U.S. at 891-894. The Court also sustained the Board’s 
ruling in that case that the employer had violated Section 
8(a)(3) of the Act when it constructively discharged its un- 

3 

documented alien workers by reporting them to the Immi- 
gration and Naturalization Service (INS), which resulted in 
the employees’ arrest and immediate voluntary departure 
from the United States to Mexico in lieu of deportation. See 
467 U.S. at 886-888, 898-906. 

As a remedy for the violation in the Sure-Tan case, the 
Board had “ordered the conventional remedy of reinstate- 
ment with backpay, leaving until the compliance proceedings 
more specific calculations as to the amounts of backpay, if 
any, due these employees.” 467 U.S. at 902.1 The court of 
appeals modified the Board’s remedial order to require rein- 
statement “only if the discriminatees are legally present and 
legally free to be employed in this country when they offer 
themselves for reinstatement,” and to deny back pay to dis- 
criminatees “unavailable for work during any period when 
not lawfully entitled to be present and employed in the 
United States.” NLRB v. Sure-Tan, Inc., 672 F.2d 592, 606 
(7th Cir. 1982), rev’d in part, 467 U.S. 883 (1984); see also 467 
U.S. at 889. The court of appeals observed, however, that 
the discriminatees might not have been lawfully available for 
employment in the United States before the new offers of 
reinstatement were extended, and thus might receive no 
back pay at all. 672 F.2d at 606. To avoid such a situation, 
the court of appeals directed that the alien employees who 
had left the United States be awarded a minimum of six 
months’ back pay, reasoning that was “the minimum during 
which the discriminatees might reasonably have remained 

1 The Board in Sure-Tan declined to adopt the suggestion of an ad- 
ministrative law judge that the undocumented alien employees be af- 
forded a minimum of four weeks’ back pay, and instead directed that the 
compliance proceedings determine whether “the employees had in fact 
been available for work” for any period in which back pay might be 
awarded. 467 U.S. at 889. 

4 

employed without apprehension by INS, but for the em- 
ployer’s unfair labor practice.” Ibid. 

This Court held that the minimum six-month back pay 
award imposed by the court of appeals “constitute[d] pure 
speculation and [did] not comport with the general reparative 
policies of the NLRA.” Sure-Tan, 467 U.S. at 901. As the 
Court explained, such an order departed from the require- 
ment that a remedy “be adapted to the situation which calls 
for redress.” Id. at 900. The Court agreed with the court of 
appeals, however, that “the implementation of the Board’s 
traditional remedies at the compliance proceedings must be 
conditioned upon the employees’ legal readmittance to the 
United States.” Id. at 902-903. That condition on the dis- 
criminatees’ remedy, the Court stated, was appropriate to 
accommodate “the objective of deterring unauthorized immi- 
gration” reflected in the Immigration and Nationality Act 
(INA), 8 U.S.C. 1101 et seq. See 467 U.S. at 903.2 The Court 
added (ibid.): 

By conditioning the offers of reinstatement on the em- 
ployees’ legal reentry, a potential conflict with the INA 
is thus avoided. Similarly, in computing backpay, the 
employees must be deemed “unavailable” for work (and 
the accrual of backpay therefore tolled) during any 
period when they were not lawfully entitled to be pre- 
sent and employed in the United States. 

c. Subsequent to Sure-Tan, Congress amended the INA 
by enacting the Immigration Reform and Control Act of 1986 
(IRCA), Pub. L. No. 99-603, 100 Stat. 3359. In a substantial 

2 The Court observed that, under the version of the INA then in 
effect, “[t]he central concern of the INA [was] with the terms and con- 
ditions of admission to the country and the subsequent treatment of aliens 
lawfully in the country,” and the INA reflected at most “a peripheral 
concern with employment of illegal entrants.” Sure-Tan, 467 U.S. at 892 
(internal quotation marks omitted). 

5 

change from prior law (see note 2, supra), IRCA made it un- 
lawful for employers knowingly to employ aliens not 
authorized to obtain employment in the United States. Con- 
gress provided in IRCA that “[i]t is unlawful for a person or 
other entity—(A) to hire * * * for employment in the 
United States an alien knowing the alien is an unauthorized 
alien * * * or (B) to hire for employment in the United 
States an individual without complying with the require- 
ments of subsection (b).” 8 U.S.C. 1324a(a)(1).3 “[T]he 
requirements of subsection (b)” referred to in Section 
1324a(a)(1)(B) are set forth in Section 1324a(b), which estab- 
lishes an “employment verification system” that obligates 
each employer to examine specified kinds of documents to 
verify that a person whom it wishes to hire is not an “un- 
authorized alien.” 8 U.S.C. 1324a(b). In addition, Section 
1324a(a)(2) of Title 8, as added by IRCA, makes it unlawful 
for a person, after hiring an alien for employment in accor- 
dance with paragraph (1) (i.e., Section 1324a(a)(1)), “to con- 
tinue to employ the alien in the United States knowing the 
alien is (or has become) an unauthorized alien.” 8 U.S.C. 
1324a(a)(2). 

An employer who violates Section 1324a may be subject to 
civil and criminal penalties. See 8 U.S.C. 1324a(e)(4) and 
(5) (civil penalties); 8 U.S.C. 1324a(f)(1) (criminal penalties). 
Any penalties apply, however, only if the employer has 
knowingly hired or retained an unauthorized alien or has not 
complied with the employment verification system.4 

3 IRCA defines “unauthorized alien” to mean, “with respect to the em- 
ployment of an alien at a particular time, that the alien is not at that time 
either (A) an alien lawfully admitted for permanent residence, or (B) 
authorized to be so employed by this chapter or by the Attorney General.” 
8 U.S.C. 1324a(h)(3). 

4 An employer that violates IRCA’s prohibition against knowingly 
hiring or continuing to employ an unauthorized alien is subject to an esca- 
lating range of civil penalties from $275 to $11,000. See 8 U.S.C. 

6 

In addition to placing new restrictions on the hiring prac- 
tices of employers, IRCA also prohibited certain conduct by 
individuals seeking employment. Under 18 U.S.C. 1546(b), 
as amended by IRCA, it is a criminal offense for a person to 
use “an identification document, knowing (or having reason 
to know) that the document was not issued lawfully for the 
use of the possessor, [or] * * * that the document is false, 

* * * for the purpose of satisfying a requirement of ” the 
employment verification system established by Section 
1324a(b). See 18 U.S.C. 1546(b)(1) and (2). 

2. Following the Court’s decision in Sure-Tan and the 
enactment of IRCA, the Board considered in several cases 
whether undocumented alien workers who had not departed 
from the United States remained eligible for the remedies of 
reinstatement or back pay.5 Most extensively, in A.P.R.A. 

1324a(e)(4)(A); 8 C.F.R. 274a.10(b)(1). An employer that engages in a 
“pattern or practice” of violations is subject to a criminal fine of not more 
than $3000 for each such violation, and to imprisonment not to exceed six 
months “for the entire pattern or practice.” 8 U.S.C. 1324a(f)(1). An em- 
ployer that violates IRCA’s prohibition against hiring an individual with- 
out complying with the “employment verification system” (see 8 U.S.C. 
1324a(a)(1)(B), 1324a(b)) is subject only to a civil penalty, ranging from 
$110 to $1100 per violation. 8 U.S.C. 1324a(e)(5); 8 C.F.R. 274a.10(b)(2). 

5 Initially, the Board interpreted Sure-Tan’s rule requiring the tolling 
of any back pay period as applying to all undocumented alien workers, 
whether or not they remained in the United States during the back pay 
period. See Felbro, Inc., 274 N.L.R.B. 1268, 1269 (1985), enf. denied, 795 
F.2d 705 (9th Cir. 1986). The Ninth Circuit rejected the Board’s reading of 
Sure-Tan and concluded that Sure-Tan “barred from backpay only those 
undocumented workers who were unavailable for work in the backpay 
period because they were outside the United States without entry papers.” 
Local 512, Warehouse & Office Workers’ Union v. NLRB (Felbro, Inc.), 
795 F.2d 705, 722 (1986). The Board subsequently reexamined the issue in 
light of the Ninth Circuit’s decision and adopted that court’s reading of 
Sure-Tan. See Del Rey Tortilleria, Inc., 302 N.L.R.B. 216, 219-220 (1991), 
enf. denied, 976 F.2d 1115 (7th Cir. 1992). The Board has since adhered to 
the Felbro court’s reading of Sure-Tan. See A.P.R.A. Fuel Oil Buyers 

7 

Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995), enf ’d, 
134 F.3d 50 (2d Cir. 1997), the Board considered the situation 
of an employer who had knowingly hired undocumented 
workers in violation of IRCA, and then discharged them for 
union activities in violation of Section 8(a)(3) of the NLRA. 
Seeking to accommodate the policies of both the NLRA and 
IRCA, the Board concluded that a limited award of back pay 
and a conditional order of reinstatement would effectuate 
the policies of the NLRA by affording the alien workers 
meaningful redress for the violation of that Act, without re- 
quiring the reestablishment of an employment relationship 
in violation of IRCA. See A.P.R.A. Fuel, 320 N.L.R.B. at 
415-416.6 As the Board explained, the fired employees 
“would have retained their jobs with [the employer] but for 
their union activities and the [employer’s] unlawful retalia- 
tion for them.” Id. at 416. And the Board stressed that, 
unlike the situation in Sure-Tan, “in which [this] Court 
sought to avoid sponsoring a violation of the INA by en- 
couraging the employees to reenter the country illegally,” an 
appropriately limited award of back pay to an undocumented 
alien who has never left the United States “does not promote 
illegal reentry” and also does not “induce [the employer] to 
illegally rehire the discriminatees in order to terminate 
backpay liability.” Ibid. Rather, the Board noted, “the 

Group, Inc., 320 N.L.R.B. 408, 415 (1995), enf ’d, 134 F.3d 50 (2d Cir. 1997); 
Pet. App. 83a n.8. 

6 The remedy of reinstatement under A.P.R.A. Fuel is available to 
discharged employees only upon “their satisfaction of the normal verifi- 
cation of eligibility requirements prescribed by IRCA.” 320 N.L.R.B. at 
415. The back pay period under A.P.R.A. Fuel terminates when the alien 
employees are reinstated, “subject to compliance with the [employer’s] 
normal obligations under IRCA” to verify their eligibility for employment 
in the United States, or when the employees, after a reasonable period of 
time, fail to produce “the documents enabling the [employer] to meet its 
obligations under IRCA,” whichever date is earlier. Id. at 416. 

8 

backpay remedy serves to place the employees for a limited 
time in the position that they would have been but for the 
[employer’s] unlawful conduct.” Ibid. 

The Board in A.P.R.A. Fuel indicated, moreover, that in 
light of the policies of IRCA, it would not order reinstate- 
ment in a case where the employer did not know, at the time 
of hire, that the employee whom it subsequently discharged 
in violation of the NLRA was not authorized to work in the 
United States under IRCA, but rather learned of that fact 
only after the discharge. See A.P.R.A. Fuel, 320 N.L.R.B. at 
415 n.39, 416 n.44. As the Board noted, under established 
Board law, “if an employer satisfies its burden of establish- 
ing that the discriminatee engaged in unprotected conduct 
for which the employer would have discharged any em- 
ployee, reinstatement is not ordered and backpay is termi- 
nated on the date the employer first acquired knowledge of 
the misconduct.” Id. at 416 n.44 (internal quotation marks 
and citations omitted). Thus, an employer who hires an 
employee in conformit wit IRCA’s employment-verification 
system and believes in good faith that the employee is 
authorized to work in the United States, but who sub- 
sequently learns that the employee is an undocumented alien 
not authorized for employment, may take advantage of this 
after-acquired evidence rule to terminate its liability for 
back pay and to avoid reinstatement altogether, even if it 
has discharged the employee in violation of Section 8(a)(3) of 
the NLRA. 

3. a. Petitioner produces polyvinyl chloride pellets. In 
May 1988, petitioner hired Jose Castro to work as a com- 
pounder in petitioner’s plant. Pet. App. 40a; Hoffman 
Plastic Compounds, Inc., 306 N.L.R.B. 100, 101, 104 (1992). 
Prior to hiring Castro, petitioner, as required by IRCA (see 

p. 5, supra), examined documents tendered by Castro to 
verify that he was authorized to work in the United States. 

9 

Those documents appeared to be genuine and related to the 
person presenting them. Pet. App. 85a & n.11. 

Later in 1988, the United Rubber, Cork, Linoleum, and 
Plastic Workers of America, AFL-CIO, began a union- 
organizing campaign at petitioner’s plant. Castro supported 
the organizing campaign and distributed authorization cards 
to co-workers. Pet. App. 5a; Hoffman Plastic Compounds, 
306 N.L.R.B. at 102, 108. On January 31, 1989, petitioner 
laid off Castro and all of the other employees who had 
engaged in organizing activities. Pet. App. 5a. 

b. On January 22, 1992, the Board issued a decision find- 
ing that petitioner had unlawfully responded to the union’s 
organizing campaign by discriminatorily selecting Castro 
and three other employees for layoff “in order to rid itself of 
known union supporters,” contrary to Section 8(a)(3) of the 
NLRA. Hoffman Plastic Compounds, 306 N.L.R.B. at 100; 
see also id. at 100 n.1 (finding that Castro “had sufficient 
seniority * * * that he would not have been laid off but for 
[petitioner’s] discrimination against him”); Pet. App. 5a, 79a. 
The Board ordered petitioner, inter alia, to offer reinstate- 
ment to Castro and the other discriminatees, and to make 
them whole for lost earnings, with the amount to be deter- 
mined at a compliance hearing before an administrative law 
judge (ALJ). Hoffman Plastic Compounds, 306 N.L.R.B. at 
100, 107; Pet. App. 5a, 79a. Thereafter, petitioner entered 
into a stipulation with the Board’s General Counsel, whereby 
petitioner waived its right to seek judicial review of the 
Board’s January 22, 1992, decision and order. Pet. App. 88a. 

c. The parties then proceeded to the compliance hearing 
before the ALJ. On June 14, 1993, the final day of the hear- 
ing, Castro testified that he was born in Mexico and that, to 
obtain employment with petitioner in 1988, he had tendered 
a birth certificate that “is not his own,” but rather “is for an 
individual born in El Paso, Texas.” Pet. App. 80a. He 
further testified, “[T]he birth certificate was loaned to me so 

10 

that I can secure a job.” Ibid. Based on Castro’s testimony, 
the ALJ recommended that Castro be denied reinstatement 
and awarded no back pay. Id. at 94a-95a. 

On September 23, 1998, the Board reversed the ALJ’s de- 
cision in part. Pet. App. 78a-87a. Relying on its decision in 
A.P.R.A. Fuel, the Board rejected petitioner’s contention 
that Sure-Tan and IRCA bar any award of back pay to 
Castro in light of his testimony before the ALJ. Id. at 84a. 
The Board found, however, that petitioner had “attempted 
to comply with IRCA when it hired Castro,” that it “would 
not have offered Castro initial employment had it known of 
his unauthorized immigration status,” and that it “did not 
learn until the back-pay hearing that Castro used fraudulent 
identification in applying for employment.” Ibid. Applying 
the “after-acquired knowledge” rule adverted to in A.P.R.A. 
Fuel (see p. 8, supra), the Board concluded that “Castro is 
not entitled to reinstatement, and backpay shall terminate 
on June 14, 1993, the date [petitioner] learned that Castro 
used fraudulent identification to gain employment.” Id. at 
85a.7 A dissenting Board Member would have denied Castro 
all back pay. Id. at 87a. 

7 The Board generally defines the back pay period as commencing on 
the date of the discharge (or other discriminatory action) and ending on 
the date on which the employer extends the employee a proper offer of 
reinstatement. See Seven-Up Bottling, 344 U.S. at 347; F.W. Woolworth 
Co., 90 N.L.R.B. 286, 292-293 (1950). In this case, petitioner attempted to 
make Castro an offer of reinstatement on March 10, 1989, before the 
Board’s decision of January 22, 1992, finding petitioner in violation of the 
NLRA and ordering relief. See Pet. App. 80a. Petitioner’s offer of rein- 
statement, however, did not toll its back pay liability to Castro because, 
the Board found, that offer was not “specific, unequivocal, and uncon- 
ditional.” Id. at 81a. Petitioner did not challenge that finding by the 
Board in the court of appeals. The Board awarded Castro $66,951 (plus 
interest). It found that Castro had satisfied his obligation to mitigate his 
damages by obtaining interim work. Id. at 85a & n.12. 

11 

4. Petitioner filed a petition for review of the Board’s 
order in the court of appeals. A panel of the court of appeals 
denied the petition for review. Pet. App. 37a-77a. After 
rehearing the case en banc, the court again denied the 
petition for review and enforced the Board’s order. Id. at 
1a-36a. 

The en banc court rejected petitioner’s contention that 
Sure-Tan prohibits the Board from awarding any back pay 
to Castro. Pet. App. 7a. That contention, the court noted, is 
based on “a single sentence from Sure-Tan,” but “[r]ead in 
context, the Sure-Tan sentence does not bar backpay to un- 
documented discriminatees.” Ibid.8 The court explained 
that to construe that passage as establishing an absolute bar 
to back pay “would conflict with the Court’s holding [in Sure- 
Tan] that an undocumented discriminatee is entitled to back- 
pay so long as it is appropriately tailored to the discri- 
minatee’s actual loss.” Id. at 8a. The court further observed 
that the restriction set forth in the sentence at issue had 
been fashioned by the Seventh Circuit, and was adopted by 
this Court “to ensure that the Sure-Tan discriminatees who 
had left the country would not reenter illegally to claim 
backpay.” Id. at 11a. 

The court also rejected petitioner’s alternative contention 
that, “even if Sure-Tan does not bar backpay to undocu- 
mented discriminatees, IRCA does.” Pet. App. 14a. The 
court explained that “IRCA neither amends nor repeals the 
NLRA or any other labor law,” and “IRCA’s legislative 
history * * * shows that Congress did not intend the 
statute to limit the NLRA even indirectly.” Ibid. And it 

8 The relevant sentence reads: “[I]n computing backpay, the em- 
ployees must be deemed ‘unavailable’ for work (and the accrual of backpay 
therefore tolled) during any period when they were not lawfully entitled 
to be present and employed in the United States.” Sure-Tan, 467 U.S. at 
903. See also p. 4, supra. 

12 

rejected petitioner’s contention that, even “[a]bsent a statu- 
tory bar * * * the Board’s backpay award fails to accommo- 
date IRCA’s goal of limiting the hiring of undocumented 
workers.” Id. at 16a. As the court explained: 

The Board crafted the limited backpay remedy to avoid 
conflict with IRCA and to implement its understanding 
of the purposes of both IRCA and the NLRA. According 
to the Board, the limited backpay award reduces 
employer incentives to prefer undocumented workers 
(IRCA’s goal), reinforces collective bargaining rights for 
all workers (the NLRA’s goal), and protects wages and 
working conditions for authorized workers (the goal of 
both Acts). 

Id. at 23a.9 

SUMMARY OF ARGUMENT 

The National Labor Relations Board acted reasonably and 
within its authority in ordering a limited award of back pay 
to Jose Castro as a remedy for petitioner’s violation of 
Section 8(a)(3) of the National Labor Relations Act (NLRA). 
Contrary to petitioner’s contentions, that back pay award, 
which terminates as of the date that petitioner learned that 
Castro was an undocumented alien and therefore could not 

9 Judge Sentelle, joined by Judges Henderson and Randolph, dis- 
sented. Pet. App. 24a-36a. Judge Sentelle would have ruled that Sure- 
Tan “definitively answered” the question before the court and would have 
required vacatur of the Board’s back pay award to Castro. Id. at 27a. He 
also believed that the majority “essentially ignore[d]” the “statutory 
directives of IRCA,” and improperly “cho[se] to mediate between [the] 
statutory ‘goals’ ” of IRCA and the NLRA. Id. at 35a. Judge Ginsburg, in 
a separate dissenting opinion, agreed with Judge Sentelle that Sure-Tan 
“definitively answered the question” before the court, and therefore found 
it unnecessary “to reach the question whether the Board reasonably 
reconciled the remedial scheme of the NLRA with the policies embodied 
in the IRCA.” Id. at 36a. 

13 

be employed because of the Immigration Reform and Con- 
trol Act of 1986 (IRCA), does not contravene either this 
Court’s decision in Sure-Tan, Inc. v. NLRB, 467 U.S. 883 
(1984), or IRCA. The award also accommodates and indeed 
furthers the policies underlying IRCA, and it represents an 
otherwise proper exercise of the Board’s authority to re- 
medy violations of Section 8(a)(3). The back pay award 
should therefore be upheld. 

A. Sure-Tan does not hold that the Board is flatly pro- 
hibited in all circumstances from awarding back pay as a 
remedy to an undocumented alien whose rights under the 
NLRA have been violated. Sure-Tan involved undocu- 
mented aliens who were reported to the INS by their 
employer in retaliation for exercising their rights under the 
NLRA, were taken into custody by the INS, and immedi- 
ately left the United States. The Court held that a minimum 
award of six months’ back pay to the aliens ordered by the 
court of appeals was impermissibly speculative, and that al- 
though the aliens might be entitled to receive back pay, any 
such back pay had to be tolled until the aliens demonstrated 
that they were legally authorized to be present and em- 
ployed in the United States. The Court perceived that the 
tolling period was necessary to accommodate the objective 
embodied in the Nation’s immigration laws of deterring un- 
authorized entry into the United States. 

This case, however, differs markedly from Sure-Tan in 
that the discriminatee did not leave the United States labor 
market, and there is no need to speculate about the period 
that the discriminatee would have worked for the employer, 
had the employer not violated the NLRA. Because Castro 
did not leave the United States, the Board’s back pay award 
does not present the same danger, perceived by the Court in 
Sure-Tan, of encouraging aliens to reenter this country ille- 
gally. Furthermore, because petitioner reasonably believed 
that Castro was authorized for employment when it hired 

14 

him, its continued employment of Castro (until it learned he 
was an undocumented alien) was not prohibited by IRCA. 
The Board’s back pay award also terminated as of the date 
that petitioner learned it could no longer employ Castro, and 
the Board did not order reinstatement. Thus, the Board’s 
back pay award does not encourage employers to violate 
IRCA by hiring undocumented aliens. Nor does the Board’s 
back pay remedy reflect speculation. To the contrary, it re- 
medies Castro’s actual economic loss resulting from peti- 
tioner’s unfair labor practice, in that it is tied to the period 
that Castro would have continued to work for petitioner. Al- 
though petitioner invokes one sentence in the Court’s 
opinion in Sure-Tan to argue that no undocumented alien 
may receive back pay as a remedy for a violation of the 
NLRA (and possibly other federal labor laws as well), that 
broad question was not before the Court in Sure-Tan, and 
the Court need not and should not read that sentence in a 
manner divorced from its context as petitioner suggests. 

B. The Board’s order appropriately reconciles the policies 
of the NLRA and IRCA, and indeed it furthers the purposes 
underlying IRCA. Back pay is a fundamental aspect of the 
Board’s remedial authority under the NLRA and has long 
been recognized as essential to effective enforcement of the 
Act. The Board’s award also takes account of Castro’s mis- 
conduct by denying him reinstatement and terminating his 
back pay when it became clear that, because he was an un- 
documented alien, petitioner could and would no longer 
employ him. The Board’s after-acquired knowledge rule, 
terminating back pay as of that date, is very similar to the 
approach taken by this Court in McKennon v. Nashville 
Banner Publishing Co., 513 U.S. 352 (1995). In addition, the 
Board’s order does not place petitioner into a situation of 
conflicting obligations. The back pay order does not require 
petitioner to hire Castro in violation of IRCA, and it runs 

15 

only for the time in which petitioner could have employed 
Castro without violating IRCA. 

Appropriately limited back pay for undocumented alien 
employees who have been subjected to violations of the 
NLRA promotes enforcement of federal immigration law as 
well as labor law. Congress, this Court, and the Board have 
all recognized that employers may have an economic incen- 
tive to employ undocumented aliens, because such em- 
ployees are more willing to work for substandard wages and 
in subpar working conditions and are unlikely to complain 
about such wages and conditions in the absence of legal pro- 
tections. Including undocumented aliens within the pro- 
tection of federal labor law counteracts that incentive, be- 
cause it minimizes the danger that employers will obtain 
a competitive advantage from employing unauthorized 
workers. If an employer recognizes that it will face the 
monetary sanction of back pay if it unlawfully discharges an 
undocumented alien worker in violation of the NLRA, just 
as if it unlawfully discharged a citizen worker, then it is less 
likely to perceive an advantage in hiring undocumented 
aliens. Undocumented aliens in turn will be less likely to 
seek or obtain employment here. 

Based on all these considerations, Congress did not bar 
undocumented aliens from receiving back pay as a remedy 
for violations of federal labor laws, and indeed in IRCA it 
authorized increased enforcement of labor laws by the 
Department of Labor, in recognition of the fact that such 
enforcement (including the possibility of back pay awards for 
undocumented aliens) would deter employment of undocu- 
mented aliens and would therefore deter illegal immigration. 
The flat rule advocated by petitioner, barring undocumented 
aliens from back pay awards, might therefore undermine 
effective enforcement of federal immigration and labor laws, 
and neither Sure-Tan nor IRCA requires that result. 

16 

ARGUMENT 

THE BOARD’S LIMITED AWARD OF BACK PAY IN 
THIS CASE IS A PROPER EXERCISE OF ITS 
AUTHORITY TO REMEDY PETITIONER’S VIOLA- 
TION OF SECTION 8(a)(3) OF THE NATIONAL 
LABOR RELATIONS ACT 

The question before the Court in this case is whether the 
Board acted within its remedial authority in awarding 
Castro a limited measure of back pay as a remedy for peti- 
tioner’s violation of the NLRA. 

10 Petitioner contends that 
the Board is precluded from awarding Castro any back pay 
by Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), and by the 
Immigration Reform and Control Act of 1986 (IRCA), Pub. 
L. No. 99-603, 100 Stat. 3359. That contention is incorrect. 
The passage from Sure-Tan on which petitioner relies, 
understood in light of its context, does not bar the remedy 
ordered by the Board in this case. Further, the Board’s 
limited back pay order appropriately effectuates the re- 
medial purposes of the NLRA and accommodates the pro- 
hibitions against employment of undocumented aliens in 
IRCA. Accordingly, the Court should uphold the Board’s 
award of back pay to Castro. 

10 Petitioner has not challenged in this Court the Board’s deter- 
mination that it engaged in an unfair labor practice by discriminatorily 
laying off Castro in violation of Section 8(a)(3) of the NLRA. See Pet. 
App. 88a. 

17 

A. This Court’s Decision In Sure-Tan Does Not Preclude 

Appropriately Limited Back Pay For Undocumented 

Alien Employees Discharged In Violation of Section 

8(a)(3) Who Are Physically Present In The United 

States During The Back Pay Period. 

1. Petitioner principally contends that the Court’s de- 
cision in Sure-Tan conclusively prohibits any award of back 
pay to an undocumented alien who is not authorized to work 
in the United States. Pet. Br. 7-20. That argument is based 
on one sentence in the Sure-Tan opinion, in which the Court 
stated that, “in computing backpay, the employees must be 
deemed ‘unavailable’ for work (and the accrual of backpay 
therefore tolled) during any period when they were not law- 
fully entitled to be present and employed in the United 
States.” 467 U.S. at 903. Based on that sentence, petitioner 
argues (Br. 20) that Castro is not entitled to any back pay 
because he “never was lawfully present during the backpay 
period and he never was lawfully entitled to work during the 
backpay period.” 
As the court of appeals observed (Pet. App. 7a), however, 
the sentence from Sure-Tan upon which petitioner relies 
would support a conclusion that Castro is not entitled to any 
back pay only if that sentence is “divorced from Sure-Tan’s 
factual and legal context.” In its context, the Sure-Tan sen- 
tence applies specifically to those undocumented workers 
who left the United States during the relevant back pay 
period, and not to employees like Castro, who did not. See 
Pet. App. 7a-13a. 

a. Sure-Tan involved undocumented alien employees 
who were reported by their employer to the INS in retalia- 
tion for pro-union activities and who were immediately 
arrested by INS and granted voluntary departure (in lieu of 
deportation) from the United States. 467 U.S. at 886-888; 
see pp. 2-3, supra. No evidence in the record indicated 

18 

whether the employees had returned to the United States, 
with or without authorization. The ALJ nevertheless had 
declined to order any back pay based on a finding that the 
deported employees were “physically unavailable for work.” 
The Board, noting the absence of evidence on that point, 
remitted the issue of the employees’ availability for work to 
a compliance hearing. See Sure-Tan, Inc., 234 N.L.R.B. 
1187, 1187, 1193 (1978). 

On the NLRB’s petition for enforcement, the Seventh 
Circuit limited in some respects and expanded in other re- 
spects the remedy ordered by the Board. NLRB v. Sure- 
Tan, Inc., 672 F.2d 604-606. In particular, the Seventh Cir- 
cuit expressed concern that the undocumented alien employ- 
ees “might be motivated to reenter the United States un- 
lawfully to claim reinstatement and backpay,” and deter- 
mined that the Board’s remedial order required modification 
to avoid such an incentive. Id. at 603. The court therefore 
modified the Board’s remedial order “to require 
reinstatement only if the discriminatees are legally present 
and legally free to be employed in this country when they 
offer themselves for reinstatement.” Id. at 606. The court 
further concluded that, “[c]onsistent with our requirement 
that there be reinstatement only if the discriminatees are 
legally present and permitted by law to be employed in the 
United States,” it was appropriate for the court to “modify 
the Board’s order so as to make clear * * * that * * * in 
computing backpay discriminatees will be deemed unavail- 
able for work during any period when not lawfully entitled to 
be present and employed in the United States.” Ibid. That 
statement was the genesis of the proposition ultimately 
adopted by this Court in respect to back pay awards for 
undocumented workers. See Sure-Tan, 467 U.S. at 903. 

The court of appeals also observed in Sure-Tan, however, 
that “[i]n the circumstances of this case it may well be that 
the discriminatees will not have been lawfully available for 

19 

employment in the United States prior to the date of the 
new offers of reinstatement which will be required,” and that 
“[i]n that event, the discriminatees will receive no backpay.” 
672 F.2d at 606. Concluding that such a result would be in- 
consistent with remedial principles of the NLRA, the court 
ordered the Board to fix a minimum award of six months’ 
back pay for the discriminatees, which the court estimated to 
be the length of time during which the employees “might 
reasonably have remained employed without apprehension 
by INS,” had Sure-Tan not reported them to the INS in 
retaliation for their protected union activity, contrary to the 
NLRA. Ibid. 

b. This Court reversed the minimum six months’ award 
of back pay that the court of appeals had ordered, on the 
ground that such an award would not be “sufficiently 
tailored to the actual, compensable injuries suffered by the 
discharged employees.” Sure-Tan, 467 U.S. at 901. The 
Court faulted the court of appeals for “ ‘estimat[ing]’ an ap- 
propriate period of backpay without any evidence whatso- 
ever as to the period of time these particular employees 
might have continued working before apprehension by the 
INS and without affording petitioners any opportunity to 
provide mitigating evidence.” Id. at 902 n.11. The Court did 
not accept the employer’s argument (see Pet. Br. at 19-23, 
Sure-Tan, Inc. v. NLRB, supra (No. 82-945)) that, as a matter 
of law, any back pay award for the benefit of the discri- 
minatees would be contrary to federal immigration law. 
Rather, the Court “generally approve[d] the Board’s original 
course of action in this case by which it ordered the con- 
ventional remedy of reinstatement with backpay, leaving 
until the compliance proceedings more specific calculations 
as to the amounts of backpay, if any, due these employees.” 
467 U.S. at 902 (emphasis added). 

The Court also recognized, however, that the discri- 
minatees had left the United States, perhaps without 

20 

authorization to return and obtain employment. The Court 
therefore concluded that implementation of “the Board’s 
traditional remedies at the compliance proceedings must be 
conditioned upon the employees’ legal readmittance to the 
United States,” to accommodate “the objective of deterring 
unauthorized immigration that is embodied” in the INA. 
Sure-Tan, 467 U.S. at 902-903 (emphasis added). As the 
Court explained, “[b]y conditioning the offers of reinstate- 
ment on the employees’ legal reentry, a potential conflict 
with the INA is thus avoided.” Id. at 903 (emphasis added). 
And, like the court of appeals, the Court added the proviso 
that, “[s]imilarly, in computing backpay, the employees must 
be deemed ‘unavailable’ for work (and the accrual of backpay 
therefore tolled) during any period when they were not law- 
fully entitled to be present and employed in the United 
States.” Ibid. 

c. The opinions of the Board, the court of appeals, and 
this Court in Sure-Tan make clear that the central remedial 
problem in that case resulted from the fact that, on the very 
first day of the back pay period (the date of the constructive 
discharge), all of the discriminatees departed from the 
United States. See 467 U.S. at 887. By that departure, 
those workers removed themselves from the United States 
labor market, under circumstances where they were prohib- 
ited by law from reentering that labor market without 
authorization from federal immigration authorities. Under 
standard principles of employment law, workers who are 
“unavailable” for work are ineligible for back pay during the 
period of their absence from the labor market. 

11 Indeed, the 

11 For example, periods that an employee is “unavailable” for work be- 
cause of illness or disability are excluded in computing a back pay award 
(unless the condition was caused by the employer’s unlawful conduct). See 
2 B. Lindemann & P. Grossman, Employment Discrimination Law 1810- 
1811 (3d ed. 1996); see also Miller v. Marsh, 766 F.2d 490, 492 (11th Cir. 

21 

workers in Sure-Tan were similarly situated to employees 
who are incarcerated or who are inducted into the armed 
forces after having been discharged in violation of the 
NLRA, and who (the Board has held) may not receive back 
pay during the period of their incarceration or military 
service, because they are unavailable for work during that 
period and could not physically enter the labor market 
without breaking the law. 

12 And because the record did not 

1985) (no back pay for employee who removed herself from job market by 
entering law school full-time). 

12 See Sure-Tan, 467 U.S. at 903 (citing to NLRB’s case handling 
manual, which discussed, where cited, grounds on which employees might 
be unavailable and therefore ineligible for back pay, including illness, 
attendance at school, confinement in institutions, and service in armed 
forces); 234 N.L.R.B. at 1193 nn.11 & 12 (ALJ’s order in Sure-Tan denying 
back pay, relying on these analogies); see also Lundy Packing Co., 286 
N.L.R.B. 141, 163 (1987) (incarceration), enf ’d, 856 F.2d 627 (4th Cir. 
1988); MSW Constr., Inc., 219 N.L.R.B. 1073, 1079 (1975) (same); Gifford- 
Hill & Co., Inc., 188 N.L.R.B. 337, 338 (1971) (same); Brown Truck & 
Trailer Mfg. Co., 106 N.L.R.B. 999, 1028 (1953) (same); John David Brock, 
42 N.L.R.B. 457, 468-469 (1942) (induction). 

By contrast, the Board has awarded back pay to discriminatees who 
lacked certain legal qualifications to obtain employment, but who were not 
physically barred from the labor market without legal authorization. See 
Felbro, 795 F.2d at 718 (discussing cases); see also NLRB v. IBEW Local 
Union 112, 992 F.2d 990, 995 (9th Cir. 1993) (permitting award of back pay 
to discriminatee who did not have journeyman electrician’s license neces- 
sary to perform work); NLRB v. Future Ambulette, Inc., 903 F.2d 140, 145 
(2d Cir. 1990) (modifying Board’s award of back pay to permit award to 
discriminatee whose driver’s license was suspended, during periods in 
which other unlicensed drivers were also employed); Justrite Mfg. Co., 238 
N.L.R.B. 57, 67-68 (1978 (underage worker entitled to back pay); Robinson 
Freight Lines, 129 N.L.R.B. 1040, 1042, 1047-1048 (1960) (truck driver 
without valid driver’s license awarded back pay up to date on which he 
was laid off by employer for that reason). But see NLRB v. Browne, 890 
F.2d 605, 608-609 (2d Cir. 1989) (reversing Board award of back pay at 
“driver’s rate” to discriminatee whose driver’s license had been sus- 
pended). 

22 

show that those aliens were available for work in the United 
States for any period after their departure, there was no 
basis in the record for the court of appeals’ speculation that 
they would have likely remained in Sure-Tan’s employment 
for six more months, had the employer not reported their 
unlawful presence in the United States to the INS. 

Thus, the principal thrust of the Court’s ruling on back 
pay as a remedy in Sure-Tan was to set aside the speculative 
award ordered by the court of appeals as inconsistent with 
the proper standard governing judicial review of Board re- 
medial orders. See Sure-Tan, 467 U.S. at 898 (“We find that 
the Court of Appeals exceeded its narrow scope of review in 
imposing both these modifications.”) (referring to six 
months’ back pay and various requirements governing the 
reinstatement offers). Indeed, the Court “generally 
approved the Board’s original course of action” in that case, 
which was to order back pay, remitting the amount to be 
calculated at a compliance hearing, at which the employees’ 
availability for work would be considered. See id. at 902. 
The Court did not have before it for review any remedial 
order of the Board in which the Board, taking into account 
the policies of both the NLRA and the INA, had determined 
that the discriminatees should receive the traditional 
compensatory remedy of back pay for a specific period, 
based on particularized evidence about the employee’s 
employment history following his discharge. 

13 Rather, the 
Court criticized the court of appeals, not the Board, for 

13 See Sure-Tan, 467 U.S. at 901 n.11 (noting that the Board had never 
before “attempted to impose a minimum backpay award that the employer 
must pay regardless of the actual evidence as to such issues as an em- 
ployee’s availability for work or his efforts to secure comparable interim 
employment”). Indeed, the ALJ in Sure-Tan had invited the Board to 
consider ordering a minimum period of back pay, even in the absence of 
evidence about the discriminatees’ presence in the national labor market, 
see 234 N.L.R.B. at 1193, but the Board declined to take that course. 

23 

ordering back pay “without regard to the employees’ actual 
economic losses or legal availability for work,” characterizing 
the court of appeals’ action as “plainly exceed[ing] its limited 
authority under the Act.” Id. at 904-905. 

The Court also recognized that, after the discriminatees 
left the United States, they might subsequently have be- 
come “available” for work by reentering the United States. 
See Sure-Tan, 467 U.S. at 903-904. To preclude the dis- 
criminatees in Sure-Tan from claiming that they had re- 
established their “availability” for work by reentering the 
country (illegally) during the back pay period, and to encour- 
age the discriminatees to reenter legally if they wished to 
render themselves “available” for work, the Court adopted 
the court of appeals’ proviso that the discriminatees must be 
deemed “unavailable” for work “during any period when 
they were not lawfully entitled to be present and employed 
in the United States.” Id. at 903. 

Understood in its context, therefore, the Court’s limita- 
tion of the back pay remedy available to the workers in Sure- 
Tan should not be understood as a blanket rule barring back 
pay for undocumented workers in all factual contexts. 

14 

Certainly the Court was not required in Sure-Tan to decide 
any such broad issue in order to resolve the case before it. 

14 Petitioner suggests (Br. 9) that, in his partial dissent in Sure-Tan, 
Justice Brennan “agreed” that the Court’s decision in that case limiting 
back pay operates broadly to bar back pay for all undocumented workers. 
That suggestion is unpersuasive. While Justice Brennan expressed con- 
cern that, under the majority’s decision, undocumented alien workers 
would be “effectively deprived of any remedy” (467 U.S. at 911), Justice 
Brennan did not address whether the Court’s back pay proviso must 
necessarily be read as applying to undocumented workers who remain in 
the United States during the back pay period. In any event, “Cassandra- 
like predictions in dissent are not a sure guide to the breadth of the 
majority’s ruling.” United States v. Travers, 514 F.2d 1171, 1174 (2d Cir. 
1974). 

24 

Rather, the Court was faced with a specific situation in 
which the discriminatees, having made themselves unavail- 
able for work by leaving the United States labor market, 
could not reenter that labor market and become available for 
work again without either (a) receiving official authorization 
or (b) breaking the law (by reentering illegally). The Court’s 
decision reflects a concern that a discriminatee who had left 
the United States should be encouraged to pursue the former, 
rather than the latter, route to reentering the labor market 
here. 

The Board’s limited award of back pay to Castro in this 
case accordingly does not conflict with Sure-Tan. Castro 
remained in the United States following his unlawful dis- 
charge by petitioner, and thus did not make himself un- 
available for work by removing himself from the labor 
market. Awarding Castro limited back pay therefore would 
not promote his illegal reentry into the United States. 
Rather, Castro is more similarly situated to other workers 
who are legally ineligible for employment, such as underage 
workers or workers without necessary state licenses, but 
who nonetheless may receive back pay under Board and 
court precedent. See p. 21 note 12, supra. Nor is the factual 
basis for the back pay award speculative. The record in this 
case demonstrates that, absent his unlawful layoff on 
January 31, 1989, Castro would have continued working for 
petitioner until June 14, 1993, at which point the facts 
revealed by his testimony before the Board would have 
required petitioner to discharge him under IRCA. 8 U.S.C. 
1324a(a)(2); see p. 41, infra. 

This Court’s own discussion of Sure-Tan also reveals that 
that decision does not flatly preclude all back pay for undocu- 
mented workers who have been discharged in violation of 
the NLRA. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), 
decided only ten days after the decision in Sure-Tan, the 
Court summarized that decision as follows: 

25 

[I]n Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the 
Court concluded that an employer can be guilty of an un- 
fair labor practice in his dealings with an alien notwith- 
standing the alien’s illegal presence in this country. 
Retrospective sanctions against the employer may ac- 
cordingly be imposed by the National Labor Relations 
Board to further the public policy against unfair labor 
practices. But while he maintains the status of an illegal 
alien, the employee is plainly not entitled to the prospec- 
tive relief—reinstatement and continued employment— 
that probably would be granted to other victims of 
similar unfair labor practices. 

468 U.S. at 1047-1048 n.4 (emphasis added). The Lopez- 
Mendoza Court’s reference to the availability of “[r]etro- 
spective sanctions” under Sure-Tan, as distinguished from 
the “prospective relief ” of reinstatement, indicates that 
Sure-Tan does not categorically prohibit the Board from 
awarding back pay to undocumented aliens. 

15 

2. As petitioner recognizes (Br. 12 & n.7), the court of ap- 
peals’ reading of Sure-Tan in this case is consistent with that 
of the Second and Ninth Circuits, which likewise have read 
Sure-Tan’s restriction on back pay to apply only to undocu- 
mented discriminatees who have departed from the United 
States during the back pay period. See NLRB v. A.P.R.A. 
Fuel Oil Buyers Group, Inc., 134 F.3d 50, 54 (2d Cir. 1997); 
Local 512, Warehouse & Office Workers’ Union v. NLRB 
(Felbro, Inc.), 795 F.2d 705, 722 (9th Cir. 1986). Similarly, 
most courts that have examined the issue have held that 

15 Similarly, Judge Cudahy, who had written the Seventh Circuit’s 
opinion in Sure-Tan, subsequently explained that the “not lawfully en- 
titled to be present and employed in the United States” language first 
appeared in the Seventh Circuit’s opinion, and was addressed only to 
aliens who had left the country. Del Rey Tortilleria, Inc. v. NLRB, 976 
F.2d 1115, 1123-1124 (7th Cir. 1992) (Cudahy, J., dissenting). 

26 

Sure-Tan does not preclude an award of back pay under 
other employment-rights statutes, such as Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Fair 
Labor Standards Act of 1938 (FLSA), 29 U.S.C. 201 et seq., 
to undocumented aliens who have remained in the United 
States. 

16 In addition, many courts have ruled that undocu- 

16 See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1517 (9th Cir. 1989) 
(pre-IRCA case holding that Sure-Tan does not preclude undocumented 
aliens who were subjected to various discriminatory practices from re- 
ceiving back pay); Rios v. Enterprise Ass’n Steamfitters Local Union 638, 
860 F.2d 1168, 1173 (2d Cir. 1988) (pre-IRCA Title VII case holding that 
Sure-Tan did not preclude back pay to undocumented alien members of 
class of black and Hispanic employees); EEOC v. Tortilleria “La Mejor,” 
758 F. Supp. 585 (E.D. Cal. 1991) (holding that, after IRCA, undocu- 
mented aliens remain protected by Title VII); Patel v. Quality Inn South, 
846 F.2d 700, 706 (11th Cir. 1988) (pre-IRCA case holding that undocu- 
mented aliens may recover unpaid back wages for violations of FLSA), 
cert. denied, 489 U.S. 1011 (1989); In re Reyes, 814 F.2d 168, 170 (5th Cir. 
1987) (pre-IRCA case holding undocumented alien status irrelevant to 
coverage of FLSA); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 
25 F. Supp. 2d 1053 (N.D. Cal. 1998) (undocumented alien may sue for 
compensatory and punitive damages under anti-retaliation provision of 
FLSA); Alvarez v. Sanchez, 482 N.Y.S.2d 184, 185 (App. Div. 1984) (pre- 
IRCA case holding undocumented alien may maintain action under 
FLSA). See also Equal Employment Opportunity Commission, Enforce- 
ment Guidance on Remedies Available to Undocumented Workers Under 
Federal Employment Discrimination Laws (Oct. 26, 1999), available at 
<http://www.eeoc.gov/docs/undoc/html> (also concluding that Sure-Tan 
bars back pay for undocumented aliens “only where, as in Sure-Tan, the 
worker is unavailable for work by virtue of being out of the country”). Cf. 
Bevles Co. v. Teamsters Local 986, 791 F.2d 1391, 1393-1394 (9th Cir. 1986) 
(undocumented alien may recover under labor arbitration agreement), 
cert. denied, 484 U.S. 985 (1987). But see Egbuna v. Time-Life Libraries, 
Inc., 153 F.3d 184 (4th Cir. 1998) (en banc) (holding that, after IRCA, 
undocumented alien could not pursue claim of retaliatory failure to hire 
under Title VII), cert. denied, 525 U.S. 1142 (1999). 

Some of those employment-rights statutes may raise additional reasons 
for awarding back pay that are not present in this case. For example, 

27 

mented aliens may recover lost wages in tort and contract 
actions. See Felbro, 795 F.2d at 718 n.12 (collecting cases). 

Petitioner, however, urges the Court to adopt the con- 
trary interpretation of Sure-Tan set forth in the majority 
opinion in Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 
(7th Cir. 1992), and in Judge Beezer’s dissenting opinion in 
Felbro. Neither of those opinions, however, provides a per- 
suasive reading of the Sure-Tan decision. In Del Rey 
Tortilleria, a majority of a panel of the Seventh Circuit in- 
terpreted Sure-Tan’s back pay limitation broadly to “bar[] 
undocumented aliens from receiving backpay.” 976 F.2d at 
1119. In reaching that conclusion, the Del Rey Tortilleria 
court relied in part on Judge Beezer’s dissent in Felbro (as 
does petitioner). See ibid. 

17 Judge Beezer argued that an 
undocumented worker “has not been harmed in a legal sense 
by the deprivation of employment to which he had no 

under the minimum-wage and overtime provisions of the FLSA, 29 U.S.C. 
206(a) and 207(a), and under the Equal Pay Act, 29 U.S.C. 206(d), when an 
employee sues to recover unpaid back wages, the employee is seeking 
compensation for work that was actually performed, not (as in this case) 
back pay for work that would have been performed had the employee not 
been unlawfully discharged. In addition, such FLSA and Equal Pay Act 
suits usually do not present questions of mitigation of damages, whereas 
an employee who has been discharged in violation of the NLRA and who 
seeks back pay through an NLRB award generally must show that he has 
attempted to mitigate his damages. See p. 10 note 7, supra. 

17 The panel in Del Rey also suggested that, if undocumented aliens 
could receive back pay as a remedy for a violation of their rights under the 
NLRA, they “would be rewarded by the NLRB for entering the United 
States illegally.” 976 F.2d at 1119. Nowhere in Sure-Tan, however, did 
this Court explain the justification for its limitation on back pay in such 
terms. See 467 U.S. at 902-905. Indeed, that reasoning is in significant 
tension with this Court’s conclusion in Sure-Tan that, notwithstanding 
their having illegally entered the United States, undocumented workers 
are entitled to the benefit of improved wages and working conditions (i.e., 
the “rewards”) that may flow from collective bargaining under the NLRA. 
See id. at 891-894. 

28 

entitlement,” and therefore is not entitled to any back pay 
for a discharge in violation of the NLRA. Felbro, 795 F.2d at 
725. 

But in Sure-Tan, this Court declined to adopt the view 
that an undocumented alien worker cannot be “harmed in a 
legal sense” by a violation of the NLRA because he has no 
right to employment in the United States. To the contrary, 
the Court ruled in Sure-Tan, in agreement with the Board, 
that undocumented workers are “employees” within the 
coverage of the NLRA and thus are entitled to the Act’s 
protection against discharge for engaging in protected union 
activity. See 467 U.S. at 891-894. The Court stressed that 
interpreting the NLRA to cover undocumented workers pro- 
tects not only those individuals but also others who are 
covered by the NLRA. First, “[i]f undocumented alien 
employees were excluded from * * * protections against 
employer intimidation, there would be created a subclass of 
workers without a comparable stake in the collective goals of 
their legally resident co-workers, thereby eroding the unity 
of all the employees and impeding effective collective 
bargaining.” Id. at 892. 

18 Second, including undocumented 
aliens within the coverage of the NLRA (and similar laws) 
ensures that employers do not obtain any financial or 
competitive advantage in hiring undocumented aliens at 
substandard wages and conditions of employment, rather 
than citizens and aliens authorized to work. See id. at 893; 
see also Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 

18 Indeed, if undocumented workers were not included within the 
coverage of the NLRA, they would likely be intimidated from reporting 
violations to the authorities, even if those violations affected other workers 
within the coverage of the Act. See NLRB v. Apollo Tire Co., 604 F.2d 
1180, 1184 (9th Cir. 1979) (Kennedy, J., concurring) (“If the NLRA were 
inapplicable to workers who are illegal aliens, we would leave helpless the 
very persons who most need protection from exploitative employer prac- 
tices[.]”). 

29 

188 (4th Cir. 1998) (en banc) (Ervin, J., dissenting), cert. 
denied, 525 U.S. 1142 (1999). 

In sum, the Board and the court of appeals correctly 
rejected petitioner’s contention that Sure-Tan categorically 
prohibits the Board from awarding back pay in any circum- 
stances to undocumented workers simply because of their 
undocumented status during the back pay period. Rather, 
the Board and the court properly read Sure-Tan to restrict 
back pay only for discriminatees who were not physically 
present in the United States during the back pay period. 
Because Castro was physically present in the United States 
during the back pay period, Sure-Tan did not preclude the 
Board from awarding him appropriately limited back pay. 

B. The Board’s Limited Back Pay Award In This Case 

Reasonably Accommodates The Policies Of The NLRA 

and IRCA. 

Petitioner also contends (Br. 20-28) that, even if Sure-Tan 
does not preclude the Board from awarding any back pay to 
Castro, IRCA does, because IRCA barred Castro from ob- 
taining employment in the United States. The Board’s 
award of limited back pay to Castro, however, reasonably 
reconciles the remedial purposes of the NLRA with the 
objectives of IRCA. 

1. The propriety of the Board’s back pay order in this 
case is governed by three remedial principles. First, back 
pay is a fundamental aspect of the Board’s authority to 
remedy violations of Section 8(a)(3). “Making the workers 
whole for losses suffered on account of an unfair labor prac- 
tice is part of the vindication of the public policy which the 
Board enforces.” Phelps Dodge Corp. v. NLRB, 313 U.S. 
177, 197 (1941); see also Nathanson v. NLRB, 344 U.S. 25, 27 
(1952). Furthermore, Board back pay orders are not limited 
to the “correction of private injuries.” Phelps Dodge, 313 
U.S. at 193. An order of back pay also promotes “the 

30 

achievement and maintenance of workers’ self-organization” 
(ibid.) by making all employees at a particular job site 
(whether or not they are the actual targets of unfair labor 
practices) “more confident in the exercise of their statutory 
rights.” Virginia Elec. & Power Corp. v. NLRB, 319 U.S. 
533, 541 (1943); see also Golden State Bottling Co. v. NLRB, 
414 U.S. 168, 185 (1973) (back pay aids in the “prevention of a 
deterrent effect on the exercise of rights guaranteed 
employees by [Section] 7 of the Act”). Back pay thus deters 
employers from reaping a financial advantage from retalia- 
tory discharges of union organizers. 

19 

Second, even if an employee has been subjected to un- 
lawful discrimination, the employee’s own wrongdoing is re- 
levant “[i]n determining appropriate remedial action.” 
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 361 

19 As amicus Equal Employment Advisory Council points out (Br. 15- 

16), the Board does not have authority under the NLRA to impose purely 
punitive sanctions such as fines. See Republic Steel Co. v. NLRB, 311 
U.S. 7, 10 (1940). A back pay order is not punitive, however, merely be- 
cause one of its functions is to deter employers from engaging in unfair 
labor practices in violation of the Act. Rather, in a situation like this case, 
where petitioner hired Castro without knowledge that Castro was an 
undocumented alien and then also discharged Castro without that 
knowledge, but with the purpose of retaliating against Castro’s exercise of 
rights under the NLRA, an order of back pay, tied closely to the period 
that Castro would have worked had petitioner not violated Section 8(a)(3), 
serves the compensatory function of restoring “the situation, as nearly as 
possible, to that which would have obtained but for the illegal discrimina- 
tion.” Phelps Dodge, 313 U.S. at 194. By contrast, one of the chief defects 
of the court of appeals’ decision in Sure-Tan was that its award of back 
pay had no connection to any period that the undocumented aliens would 
in fact have worked had they not suffered discrimination, and therefore 
did not serve a compensatory function. See Sure-Tan, 467 U.S. at 900-901. 
In that situation, the court of appeals’ order was arguably more similar to 
an impermissible fine for a violation of the NLRA. Cf. id. at 905 n.14 
(declining to resolve whether court of appeals’ minimum back pay order in 
that case was improperly punitive). 

31 

(1995) (decided under Age Discrimination in Employment 
Act of 1967 (ADEA), 29 U.S.C. 621 et seq.). Evidence that an 
employee has engaged in misconduct sufficiently grave that 
the employer would be fully justified in discharging or re- 
fusing to hire the employee on that ground alone may pre- 
clude any reinstatement of the employee. Such misconduct 
may also terminate the employee’s right to back pay as of 
the date that misconduct came to light, on the ground that 
the employer would have discharged the employee as of that 
date anyway. But the Board has also concluded that such 
misconduct will not necessarily deprive the employee of all 
entitlement to back pay for the period before evidence of the 
misconduct came to light. Rather, the Board has applied an 
after-acquired knowledge rule closely similar to that applied 
by this Court in McKennon: if the discriminatee “engaged in 
unprotected conduct for which the employer would have dis- 
charged any employee, reinstatement is not ordered and 
backpay is terminated on the date that the employer first 
acquired knowledge of the misconduct.” Marshall Durbin 
Poultry Co., 310 N.L.R.B. 68, 70 (1993) (limiting back pay of 
discriminatee who had engaged in workplace sexual harass- 
ment), enf’d in relevant part, 39 F.3d 1312 (5th Cir. 1994); 
John Cuneo, Inc., 298 N.L.R.B. 856, 856-857 (1990) (limiting 
back pay of discriminatee who had made false statements on 
job application). Cf. McKennon, 513 U.S. at 362 (applying 
similar back pay limitation rule under ADEA). 

The Board’s after-acquired knowledge policy is based on a 
remedial judgment that, while it is appropriate for a dis- 
criminatee to bear the economic consequences of his miscon- 
duct, he is nonetheless entitled to limited compensatory re- 
lief, because “relieving [the employer] of all back pay 
liability, including that for the period when [the employer] 
had no knowledge of [the discriminatee’s misconduct] and 
had no lawful reason to fire him, would provide an undue 
windfall for [the employer].” John Cuneo, Inc., 298 N.L.R.B. 

32 

at 856 (emphasis added). This Court reached a similar judg- 
ment in McKennon. On one hand, the Court recognized that 
requiring reinstatement and continued back pay after the 
employer learned of the employee’s serious misconduct 
would unduly infringe upon the employer’s rights and pre- 
rogatives. 513 U.S. at 362. On the other hand, the Court 
made clear that “[a]n absolute rule barring any recovery of 
backpay * * * would undermine” the statutory objectives 
of preventing unlawful employment discrimination. Ibid. 

Third, in fashioni 
a remedy, the Board “may [not] wholly 

ignore other and equally important Congressional objec- 
tives,” for, “[f]requently the entire scope of Congressional 
purpose calls for careful accommodation of one statutory 
scheme to another.” Southern S.S. Co. v. NLRB, 316 U.S. 
31, 47 (1942). Thus, in a case like this one, involving re- 
medies for violations against undocumented alien employees, 
the Board’s order “is obliged to take into account 

* * * the objective of deterring unauthorized immigration 
that is embodied in the INA.” Sure-Tan, 467 U.S. at 903. 

2. The back pay order fashioned by the Board in this case 
is consistent with the remedial principles articulated above. 
First, the award furthers the compensatory goals of the 
NLRA by placing Castro, for an appropriately limited period 
of time, in the economic position he would have occupied had 
petitioner not violated his rights under the NLRA. See J.H. 
Rutter-Rex Mfg. Co., 396 U.S. at 265 (back pay award proper 
where “designed to restore, so far as possible, the status quo 
that would have obtained but for the wrongful act”). 

Second, by terminating Castro’s entitlement to back pay 
as of June 14, 1993, the Board’s order is also consistent with 
NLRA remedial principles. On that date, petitioner learned 
that Castro had used false documents in applying for em- 
ployment in May 1988, to establish that he was authorized to 
work in the United States. Pet. App. 79a-80a. The Board 
found that petitioner “would not have offered Castro initial 

33 

employment had it known of his unauthorized immigration 
status.” Id. at 84a. The Board thus cut off Castro’s 
entitlement to back pay as of June 14, 1993. That termi- 
nation date is consistent with the remedial principles, recog- 
nized by this Court in McKennon and the Board in numerous 
cases, that a discriminatee must bear the economic conse- 
quences of his own employment-related misconduct, but that 
misconduct should not be seized upon to give the employer 
an “undue windfall” of relief from all monetary liability for 
its own violation of the NLRA. John Cuneo, Inc., 298 
N.L.R.B. at 856. 

Third, the Board’s order reasonably accommodates IRCA. 
As we have explained (see pp. 4-6, supra), IRCA generally 
makes it unlawful for an employer to hire or retain an in- 
dividual knowing that he is an alien not authorized to be 
employed in the United States, or without complying with 
the “employment verification system” established by IRCA, 
which obligates each employer to examine specified kinds of 
documents to verify that a person whom it wishes to hire is 
not an “unauthorized alien.” Petitioner, however, did not 
contravene these provisions of IRCA in its employment 
relationship with Castro. Petitioner did examine relevant 
documents and did not know that Castro lacked authori- 
zation to work in the United States either when it hired him 
or when it laid him off. See Pet. App. 84a-85a & n.11. 

20 

Accordingly, the Board’s order recognizes that, at least as of 
the date that petitioner laid off Castro, petitioner could have 

20 Moreover, under 8 U.S.C. 1324a(a)(3), an employer that “establishes 
that it has complied in good faith with” the verification requirements of 
Section 1324a(b) “has established an affirmative defense” that the em- 
ployer has not violated the statute’s prohibition against knowingly hiring 
unauthorized aliens. The Board’s findings in respect to petitioner’s effort 
to verify whether Castro was authorized to work at the time of hire (see 
Pet. App. 84a-85a & n.11) are consistent with a conclusion that petitioner 
could have established that affirmative defense under IRCA. 

34 

continued to employ him for a limited period of time without 
violating IRCA. 

21 

The Board’s decision to cut off Castro’s back pay award as 
of June 14, 1993 (but not before) based on his employment- 
related misconduct also reasonably accommodates IRCA. 
Once petitioner discovered Castro’s unauthorized immi- 
gration status on June 14, 1993, it could not have continued 
to employ Castro after that date (had he not already been 
laid off in violation of the NLRA), because IRCA makes it 
unlawful for an employer “to continue to employ the alien in 
the United States knowing the alien is (or has become) an 
unauthorized alien.” 8 U.S.C. 1324a(a)(2). But because 
petitioner had previously employed Castro, it could have 
rehired him at any time before that date without checking 
his documents (for example, to comply with the Board’s 
order finding it in violation of the NLRA), as long as it did 
not otherwise become aware that Castro was an undocu- 
mented alien. See 8 C.F.R. 274a.2(b)(1)(viii)(A)(5). In these 
circumstances, by cutting off Castro’s entitlement to back 
pay as of June 14, 1993, the Board reasonably accounted for 

21 We do not suggest that a Board order awarding back pay to an 
undocumented alien discharged in violation of Section 8(a)(3) would be 
invalid if the employer had initially hired or retained the discriminatee 
knowing that he was not authorized to work in the United States. In that 
situation, the Board has concluded that a limited award of back pay is 
appropriate. See pp. 6-8, supra; A.P.R.A. Fuel, 320 N.L.R.B. 408, 416 
(1995), aff’d, 134 F.3d 50 (2d Cir. 1997); Pet. App. 83a. The Board has 
explained that that distinct back pay remedy is warranted to reduce the 
incentive for “unscrupulous employers to play the provisions of the NLRA 
and IRCA against each other to defeat the fundamental objectives of each, 
while profiting from their own wrongdoing with relative impunity.” 
A.P.R.A. Fuel, 320 N.L.R.B. at 415. Estoppel may also present another 
reason why an employer should not entirely escape back pay liability in 
such situations. In this case, the court of appeals expressly did not 
address the propriety of a back pay remedy in such situations (see Pet. 
App. 20a), and this Court need not reach that issue here. 

35 

the fact that, although Castro had sustained economic harm 
due to petitioner’s NLRA violation up to that date, effective 
on that date Castro presumably would have suffered a termi- 
nation of employment by petitioner once petitioner learned 
of his unauthorized status. 

3. The availability of back pay for undocumented aliens 
who are discharged in violation of federal labor law but who 
remain in the United States also advances the underlying 
policies of IRCA. IRCA is based squarely on Congress’s 
determination that “[e]mployment is the magnet that 
attracts aliens here illegally.” See H.R. Rep. No. 682, 99th 
Cong., 2nd Sess. Pt. 1, at 46 (1986). Congress also concluded 
that “the hiring of undocumented workers adversely affects 
American employees because alien workers, out of despera- 
tion, will work in substandard conditions and for starvation 
wages.” A.P.R.A. Fuel, 320 N.L.R.B. at 413-414. Congress 
therefore enacted penalties against employers who know- 
ingly employ undocumented workers or fail to check their 
documentation in order to deter employers from hiring un- 
authorized aliens and, in turn, to deter aliens from entering 
illegally to seek employment. 

The Board’s provision for limited back pay to discri- 
minatees such as Castro advances this deterrent objective of 
IRCA. If employers were absolved from their obligation to 
compensate undocumented aliens discharged in violation of 
federal labor laws, the deterrent effect of IRCA’s penalties 
would be undermined by employers’ monetary incentive to 
hire undocumented workers willing to work for lower wages 
and without labor protections, rather than citizens and aliens 
authorized for employment here. An employer might, for 
example, compare the monetary cost of compliance with 
IRCA’s employment-verification system and the monetary 
effect of potential sanctions under IRCA with the savings of 
employing undocumented workers and the perceived bene- 
fits of union avoidance, and decide that it is worth the risk of 

36 

incurring IRCA’s penalties to hire undocumented aliens. 
See A.P.R.A. Fuel Oil, 134 F.3d at 57. The availability of a 
limited back pay remedy ensures that employers will 
“realize[] that there will be no advantage under the NLRA 
in preferring illegal aliens to legal resident workers,” and 
thus reduces “any incentive to hire such illegal aliens.” Sure- 
Tan, 467 U.S. at 893. 

Other provisions of IRCA reinforce the point that mone- 
tary remedies for undocumented aliens who have suffered 
violations of federal labor laws advance the deterrent 
purposes of IRCA. In Section 111(a)(1) of IRCA, Congress 
stated that one of the “essential elements of the program of 
immigration control established by this Act” is “an increase 
in the * * * enforcement activities” of “appropriate 
Federal agencies in order to prevent and deter the illegal 
entry of aliens into the United States.” 100 Stat. 3381. To 
that end, in Section 111(d) of IRCA, Congress appropriated 
funds for “such sums as may be necessary to the Department 
of Labor for enforcement activities of the Wage and Hour 
Division and the Office of Federal Contract Compliance Pro- 
grams [OFCCP] within the Employment Standards Admini- 
stration of the Department in order to deter the employment 
of unauthorized aliens and remove the economic incentive for 
employers to exploit and use such aliens.” 100 Stat. 3381. 

Back pay is a conventional remedy available when the 
Wage and Hour Division of the Department of Labor en- 
forces the FLSA and when OFCCP enforces programs pro- 
hibiting discrimination by federal contractors. 

22 In providing 

22 See 29 U.S.C. 216(c) (unpaid minimum wages and overtime compen- 
sation); see also Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288 
(1960) (back pay available when Department of Labor enforces the 
FLSA’s anti-retaliation provision, 29 U.S.C. 215(a)(3)); United States v. 
Whitney Nat’l Bank, 671 F. Supp. 441 (E.D. La. 1987) (back pay available 
when OFCCP enforces programs prohibiting discrimination by federal 
contractors); United States v. Duquesne Light Co., 423 F. Supp. 507 (W.D. 

37 

for increased enforcement of those provisions to deter 
employers from hiring undocumented aliens, Congress thus 
clearly anticipated that employers would be subject to mone- 
tary liability for back pay to undocumented alien workers. 
That result is inconsistent with any suggestion that IRCA 
catagorically limited the legal protections available to such 
workers under federal labor laws. 

23 

4. Petitioner contends (Br. 20, 24) that the Board’s limited 
back pay order in this case is inconsistent with IRCA’s 
prohibition against an employer’s knowingly hiring or con- 
tinuing to employ an unauthorized alien. See 8 U.S.C. 
1324a(a)(1) and (2). There is no merit to that assertion. 
Rather, as we have explained, during the back pay period 
defined by the Board (i.e., January 31, 1989, through June 14, 
1993), petitioner could have continued to employ Castro (had 
he not already been laid off in violation of the NLRA) with- 
out violating IRCA. Moreover, unlike a reinstatement 
order, the back pay award to Castro does not require peti- 

Pa. 1976) (same); 41 C.F.R. 60-1.26(a)(2) (same). Congress likely had in 
mind back pay as the monetary sanction because civil penalties are not 
available when the Department of Labor enforces the FLSA’s anti-retalia- 
tion provision or when OFCCP enforces anti-discrimination provisions. 
Civil penalties under the FLSA for minimum wage and overtime 
violations were not enacted until 1989, after IRCA. See Fair Labor 
Standards Amendments of 1989, Pub. L. No. 101-157, § 9, 103 Stat. 945. 

23 The Department of Labor’s Employment Standards Administration 
and the INS have also recognized, in a memorandum of understanding 
concerning enforcement of labor-standards laws, that “vigorous targeted 
enforcement of labor standards can serve as a meaningful deterrent to 
illegal immigration” because “[i]t denies some of the business advantages 
that may be gained through the employment of highly vulnerable and 
exploitable workers at sub-standard wages and working conditions.” See 
Memorandum of Understanding Between the Immigration and Naturali- 
zation Service, Department of Justice and the Employment Standards 
Administration, Department of Labor (Nov. 23, 1998), available at 
<http://www.dol.gov/dol/esa/public/whatsnew/whd/mou/nov98mou.html.> 

38 

tioner to hire Castro in contravention of IRCA; it only re- 
quires petitioner to compensate Castro for a period of 
employment that would not have violated IRCA. The back 
pay award therefore does not place petitioner in a position of 
conflicting obligations under two federal statutes. 

Petitioner also maintains (Br. 20, 24, 27-28) that the 
Board’s limited back pay order is inconsistent with IRCA’s 
prohibition against an employee’s misuse of identification 
documents to secure employment. See 18 U.S.C. 1546(a) and 
(b) (1994 & Supp. V 1999). That contention is unpersuasive. 
Although Congress chose, in Section 1546(b)(1) and (2), to 
criminalize the misuse of identification documents, it did not 
also make violators ineligible for back pay awards or other 
compensation flowing from employment secured by the 
misuse of such documents. And because Congress recog- 
nized that the availability of back pay to undocumented 
aliens promotes enforcement of the immigration laws (see 
pp. 36-37, supra), the Board therefore could reasonably 
decline to invoke the document-misuse provisions as a 
complete bar to any award of back pay to Castro. 

24 

Petitioner’s reliance on the criminal provisions of 18 
U.S.C. 1546(b) to bar the Board’s award of limited back pay 
to Castro also finds little support in this Court’s decisions. 
The Court has concluded that the Board is not required to 
deny a remedy under the NLRA to a discriminatee who 
gives false testimony under oath before the agency. See 

24 Subsequent to IRCA, Congress revisited the issue of the misuse of 
identification documents by employees and enacted additional civil penal- 
ties. See Immigration Act of 1990, Pub. L. No. 101-649, § 544, 104 Stat. 
5059-5061. Yet, as in IRCA, Congress, in the 1990 Act, did not provide 
any disqualification from entitlement to back pay awards for employees 
who misuse identification documents. See 8 U.S.C. 1324c(a) and (d)(3). 
The civil penalties enacted in the 1990 Act were not made retroactive, and 
therefore do not apply to Castro’s misuse of false identification documents, 
which occurred in 1988. 

39 

ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 322-325 
(1994). Likewise, the Court has rejected the contention that, 
in a Title VII case, a court should enter judgment against a 
defendant employer solely because it has lied about its rea- 
son for the adverse employment action at issue. See St. 
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993) (ex- 
plaining that “Title VII is not a cause of action for perjury; 
we have other civil and criminal remedies for that”). 
Accordingly, while Castro could have been prosecuted for his 
fraud under IRCA, it does not follow that the Board was 
required to deny a back pay remedy to Castro, and thereby 
relieve petitioner of the conventional monetary liability that 
flowed from its own unlawful conduct, namely, laying off an 
employee in violation of the NLRA. 

25 

Moreover, as the court of appeals observed (Pet. App. 
14a), the legislative history of IRCA confirms that Congress 
“did not intend the statute to limit the NLRA even 
indirectly.” The relevant House committee report explains 

25 There is, accordingly, no merit to petitioner’s contention (Br. 24) that 
the availability of back pay to undocumented aliens like Castro improperly 
rewards their use of fraudulent documents to gain employment. Congress 
has authorized substantial criminal and civil penalties for such misconduct; 
an alien who uses such false documents may be imprisoned for up to five 
years, see 18 U.S.C. 1546(b), may be subjected to civil penalties, see 8 
U.S.C. 1324c(a)(4) and (d)(3), and may be deported as well, see 8 U.S.C. 
1227(a)(3)(C)(i). Any alien who engages in such document fraud does so, 
therefore, at substantial peril to himself. Nevertheless, Congress did not 
bar all back pay for undocumented aliens, and indeed in IRCA it 
authorized increased enforcement of labor-standards laws, in recognition 
of the fact that such enforcement (including a potential monetary remedy 
for the benefit of undocumented aliens) also deters illegal immigration by 
reducing employers’ economic incentive to hire undocumented aliens. See 
pp. 36-37, supra. Faced with competing considerations as to the optimal 
deterrence of illegal immigration, Congress simply did not preclude all 
undocumented aliens from receiving back pay, and to have done so might 
well have undermined enforcement of the Nation’s immigration laws. 

40 

that no provision of IRCA should “be used to * * * limit 
the powers of federal or state labor relations boards * * * 
to remedy unfair practices committed against undocumented 
employees for * * * engaging in activities protected by 
existing law.” H.R. Rep. No. 682, supra, Pt. 1, at 58. 
Although the committee report does not indicate the precise 
parameters of the remedy that Congress expected the Board 
to award undocumented workers victimized by NLRA vio- 
lations, the legislative history yields no support for the 
proposition that Congress sought to combat illegal immi- 
gration by (as petitioner urges) denying remedies for labor 
law violations to undocumented workers. 

5. Petitioner argues (Br. 25) that an award of back pay 
for undocumented aliens like Castro who remain in the 
United States after being illegally discharged encourages 
such aliens to extend their illegal stay. That contention, 
however, is based on the doubtful speculation that undocu- 
mented workers will consider the possibility of receiving 
back pay, perhaps after years of litigation, in deciding 
whether to remain in the United States or to return home 
after being discharged. In fact, such discharged undocu- 
mented workers are far more likely to focus on obtaining a 
new job immediately, if such employment is available. See 
Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1988) 
(noting that “[i]t is the hope of getting a job—at any 
wage—that prompts most illegal aliens to cross our borders”). 
At any rate, such judgments about the likely effects of the 
Board’s remedial orders are principally for the Board to 
make in determining how its remedial authority should be 
exercised. As this Court explained shortly after enactment 
of the NLRA: 

[Congress left] the adaptation of means to ends to the 
empiric process of administration [by the Board]. * * * 
Because the relation of remedy to policy is peculiarly a 

41 

matter for administrative competence, courts must not 
enter the allowable area of the Board’s discretion and 
must guard against the danger of sliding unconsciously 
from the narrow confine of law into the more spacious 
domain of policy. * * * [T]he power with which Con- 
gress invested the Board implies responsibility—the 
responsibility of exercising its judgment in employing 
the statutory powers. 

Phelps Dodge, 313 U.S. at 194. 

There is also no merit to petitioner’s claim (Br. 25) that, 
in awarding Castro limited back pay, the Board either 
“excus[ed] Castro’s failure to mitigate his damages” or 
“sanction[ed] the perpetration of a fraud by Castro on yet 
another unsuspecting employer.” The Board did not excuse 
any alleged “failure” by Castro to mitigate his loss of income 
after petitioner unlawfully laid him off. See generally 
Nathanson, 344 U.S. at 29 (in calculating net back pay, 
Board deducts “actual interim earnings”). Rather, the Board 
found (Pet. App. 85a-86a n.12) that Castro “satisfied his 
obligation to make reasonable efforts to find interim work 
following his unlawful layoff ” by securing such jobs as a 
carpenter’s helper and a gardener. Nor is there any evi- 
dentiary basis in the record for a conclusion that Castro 
tendered fraudulent identification documents in obtaining 
interim work. Petitioner adduced no such facts in the 
compliance proceeding before the Board. It may well be that 
the employers with which Castro secured interim 
employment either hired him without complying with the 
“employment verification system” set forth in 8 U.S.C. 
1324a(b), or were not legally obligated to verify Castro’s 
work authorization prior to hiring him. 

26 

26 An INS regulation provides that “employment” does not include 
“casual employment by individuals who provide domestic service in a 
private home that is sporadic, irregular, or intermittent.” 8 C.F.R. 

42 

Finally, there is no merit to petitioner’s suggestion (Br. 

17) that issuance by the Board of a cease and desist order 
alone represents the only proper accommodation of the 
NLRA and IRCA in this case. As this Court has explained 
in the context of Title VII, “[i]f employers faced only the 
prospect of an injunctive order, they would have little 
incentive to shun practices of dubious legality.” Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 417 (1975). Rather, “[i]t is 
the reasonably certain prospect of a backpay award that 
provide[s] the spur or catalyst which causes employers and 
unions to self-examine and to self-evaluate their employment 
practices.” Id. at 417-418 (internal quotation marks omitted). 
The same reasoning holds true in the context of unfair 
labor practices under the NLRA. As this Court has recog- 
nized, a back pay order provides “more certain deterrence 
against unfair labor practices” than does a Board cease-and- 
desist order alone. Sure- Tan, 467 U.S. at 904 n.13. To be 
sure, as the Court also held in Sure-Tan, back pay is not 
available for undocumented aliens in some circumstances, 
just as it is not available in some circumstances for other 
employees who remove themselves from the labor market or 
are otherwise not physically capable of working legally in the 
United States. See pp. 20-22, supra. But it does not follow 
that back pay under the NLRA (or other federal labor laws) 
is never available for undocumented alien workers, and such 
a holding could impair the effective enforcement of both the 
Nation’s labor and immigration laws. Neither Sure-Tan nor 
IRCA requires such a result. 

27 

274a.1(h). An employer’s obligation to verify an individual’s authorization 
for “employment” does not extend to such casual work. See 8 C.F.R. 
274a.2(b)(1)(i). Some of the work that Castro obtained after his layoff by 
petitioner could have been the kind of casual employment for which verifi- 
cation was not required (e.g., his work as a gardener). 

27 In attempting to demonstrate that the Board’s limited back pay 
order in this case is precluded by IRCA, petitioner relies (Br. 21-22) on the 

43 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

ARTHUR F. ROSENFELD 

General Counsel 
JOHN E. HIGGINS, JR. 

Deputy General Counsel 
JOHN H. FERGUSON 

Associate General Counsel 
NORTON J. COME 

Deputy Associate General 

Counsel 
JOHN EMAD ARBAB 

Attorney 
National Labor Relations 

Board 
THEODORE B. OLSON 

Solicitor General 
LAWRENCE G. WALLACE 

Deputy Solicitor General 

PAUL R.Q. WOLFSON 

Assistant to the Solicitor 

General 

DECEMBER 2001 

response of the government’s attorney to a hypothetical question posed by 
a Member of the Court at oral argument in Sure-Tan, concerning the 
permissibility of a back pay award if Congress were to enact legislation 
making it illegal to hire an alien not lawfully present in the United States. 
That reliance is misplaced. A lawyer’s response to a hypothetical question 
at oral argument concerning a law that had not yet been passed by 
Congress or interpreted by the Board is entitled to little weight as a gloss 
on a statute that was subsequently enacted. When, after Congress 
enacted IRCA, the Board did have occasion to consider the significance of 
IRCA for the appropriateness of back pay awards to undocumented aliens, 
the Board carefully examined the new legislation and determined that a 
such a back pay award would accommodate and, indeed, further, the pur- 
poses of IRCA. See pp. 6-8, supra.